Editor's Note:

 

State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.

 

THE STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT

FORMAL OPINION NO. 1979-51  

 

 

ISSUE:  Ethical responsibilities involved in labor action by attorneys employed by public agencies.

 

DIGEST:  It is unethical for an attorney employed by a public agency to engage in conduct such as refusing to represent the agency or utilizing delaying tactics in handling existing litigation for the purpose of gaining advantage in a dispute over salary and fringe benefits.

 

AUTHORITIES INTERPRETED:

 

Rule 6-101 of the Rules of Professional Conduct of the State Bar.

 

Business and Professions Code sections 6067, 6076, 6077, 6103 and 6128(b).

 

 

DISCUSSlON

 

We have been requested to discuss the ethical propriety of attorneys employed by public agencies engaging in the following activities in connection with a dispute over salary and fringe benefits:

 

1. Refusing to represent existing clients in ongoing litigation; or

 

2. Intentionally delaying the course of existing litigation by the exercise of normally unused privileges.

 

Based upon the following considerations and assumption, the Committee is of the opinion that it would be unethical for the attorneys to engage in the conduct described above as Items 1 and 2.

 

For purposes of this opinion, the Committee has considered only the applicable provisions of the California State Bar Act (Bus. & Prof. Code, 6000 et seq.) and the applicable provisions of the Rules of Professional Conduct formulated and adopted pursuant to that Act (Bus. & Prof. Code, 6076, 6077). No consideration has been given to public labor law, constitutional law or other law which may validate the conduct condemned by the State Bar Act or the Rules of Professional Conduct. (Bates v. State Bar of Arizona (1977) 433 U.S. 350 [97 S.Ct. 2691].) Moreover, it is assumed for purposes of this opinion that there is an employment agreement between the attorneys and the public employer which provides that the attorneys will furnish litigation services to or on behalf of the public employer; i.e., that the public employer is a client of the attorneys.

 

It is this assumption that is critical to our analysis of the problem.1 Given this assumption, it is clear that the attorney owes a fiduciary relationship to the employer and is bound by the most conscientious fidelity to the interests of the client. (Marsh v. State Bar (1930) 210 Cal. 303, 307; Waterman v. State Bar (1936) 8 Cal.2d 17, 20; Doyle v. State Bar (1976) 15 Cal.3d 973, 978 [126 Cal. Rptr. 801].) A refusal to provide services pursuant to the employment agreement is likely to be contrary to the best interests of the client. Thus the attorney may not abandon existing litigation, as contemplated by the employment agreement.2

 

Section 6067 of the Business and Professions Code provides that "[e]very person on his admission shall take an oath ... faithfully to discharge the duties of any [an] attorney at law to the best of his knowledge and ability." Failure to perform the duties of an attorney in a fashion known to the attorney to be expeditious and consistent with the usual practices and procedures of other attorneys is not performing to the "best of his knowledge and ability." In addition, rule 6-101(2) of the Rules of Professional Conduct provides that an attorney shall not "[f]ail to use reasonable diligence and his best judgement in the exercise of his skill and in the application of his learning in an effort to accomplish, with reasonable speed, the purpose for which he is employed." Finally, an attorney who "wilfully delays a client's suit with a view to his own gain" is guilty of a misdemeanor. (Bus. & Prof. Code, 6128, subd. (b); see Silver v. State Bar (1974) 13 Cal.3d 134, 141 [117 Cal. Rptr. 821].) Thus, the attorney may not delay existing litigation as part of a labor negotiation strategy when the controversy in conflict concerns only salary and benefit considerations personal to the attorney.

 

The Committee notes potentially significant differences in duties and in relationships which may arise in practice among various publicly employed attorneys. However, the Committee has not been asked, and therefore does not undertake, to analyze this problem in such terms. For example, while it may be appropriate for a deputy public defender to refuse to represent individual clients as a result of a belief that effective, competent representation cannot be provided due to excessive caseloads or inadequate preparation, the inquiry presented does not postulate such motivation for the conduct specified. (See Ligda v.Superior Court (1970) 5 Cal. App.3d 811 [85 Cal. Rptr. 744].)

 

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.

 

 

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1 Publicly employed attorneys often find that they have more than one client. The potential for conflict which exists as between such clients is not the subject of this opinion.

 

2 The Committee does not decide the question of whether a refusal to accept new cases while continuing to handle existing litigation is unethical because the Committee was unable to reach a consensus.